Commissioners of Parks & Boulevards v. Detroit, Grand Haven & Milwaukee Railway Co.

McGrath, J. These are proceedings for the opening of the boulevard in the city of Detroit, over respondents’ rights of way, under Act No. 388, Local Acts of 1889. Precisely the same questions are raised as were passed upon in Commissioners, etc., v. Michigan Cent. R. R. Co. et al., 90 Mich. 385, except that here it is insisted that the opening is across lands which are used by the railroad companies for yard purposes. It clearly appears from the record that all of the tracks in use by respondents within the lines of the proposed boulevard, and for some distance both north and south, are within the original rights of way of respondents. The only basis for the claim that the land sought to be condemned is railroad yard land is the testimony, upon cross-examination, of petitioner’s civil engineer, who says that it is a railroad yard. The yard master called by respondents said: “We call the Grand Trunk Railroad Y tracks the “ ‘Yard.’ ” This “Y,” so-called, is the main line upon which every train to and from the city runs. The main track of the Detroit, Grand Haven & Milwaukee road is upon the right of way which it is proposed to cross. In the motions made to dismiss the petitions in both cases respondents allege, upon oath, that the lands sought to be taken “are portions of the rights of way of said respondents, occupied by their main and side tracks.” The yard master says, further: “Trombly and Milwaukee avenues cross the track. These avenues interfere ivith switching, the same as any grade crossing, and they take up the storage room for cars.” It cannot be' contended that a railroad company can so convert its right of way into store room for its cars, and call it “a yard,” and thus prevent a street from crossing its right 'of way. It cannot be that a railroad company can condemn a right of way through the city or other [60] property, and then so convert' such right of way, or so denominate it, as to prevent the owners of the property through which that right of way is condemned from obtaining streets across the same. No such use or purpose was contemplated when the right of way was secured. It is notorious that every street, from Tenth to the westerly limits of the city, is. crossed by the Michigan Central, and upon every one of these crossings side tracks have been added, until every foot of space upon the right of way of the company is covered. The Lake Shore & Michigan Southern Railway, the Grand Trunk Railroad, and the Detroit & Bay City Railroad maintain separate tracks and side tracks, with adjoining rights of way, from and across the boulevard on the west, northeasterly to the northerly limits of the city, at a point above the land in question, crossing Michigan avenue, Grand River avenue, Woodward avenue, and again crossing the boulevard and more than a score of other streets. The Detroit, Grand Haven & Milwaukee maintains a main track and two or more side tracks from Croghan street north to the city limits, covering 50 streets in its course. Is it true that a railway company may fill its right of way on a street with side tracks, and that the existence of these side tracks at other points, if called a “yard,” will actually prevent the opening of streets across the right of way of the company? In Railway Co. v. City of Faribault, 23 Minn. 167, and in Union Depot Co. City of St. Paul, 30 Id. 359 (15 N. W. Rep. 684), it was proposed to take depot grounds. In Railroad Co. v. Williamson, 91 N. Y. 552, the land proposed to be taken had been condemned for depot purposes. In Re City of Buffalo, 68 N. Y. 167, it was proposed to take certain portions of- the yards of the railroad company for canal purposes. In Re Boston & A. R. R. Co., 53 N. Y. 574, the rail [61] road company sought to take lands which had been donated to the respondent village for the purpose of a park. Here neither depot nor yard grounds are proposed to be taken, nor is it proposed to divest the railroad companies of the legitimate use of the land for the purpose for which it was condemned. The case of Commissioners, etc., v. Michigan Cent. R. R. Co. et al., 90 Mich. 385, involved the crossing of the rights of way of the three roads — the Michigan Cent. R. R. (lessee of the Detroit & B. C. R. R.), Lake Shore & M. S. Ry., and Grand Trunk R. R. — at a point where the rights of way are side by side, where the main and side tracks of each road cross the boulevard, and where the Detroit & Bay City road leaves the line of the other roads, forming a Y, to reach the main tracks of the Michigan Central Railroad. The same questions were raised in that case, except that the Y was not called a part of the yard. All the traffic of the Detroit & Bay City road, and all of the freight traffic of the Grand Trunk, to and from the western portion of the city, crosses the boulevard at that point. The verdict and order of confirmation must, however, be set aside for the refusal of the court to permit the jury to consider the allowance to respondents of compensation for the expense of erecting safety gates. Upon that point, as well as the other questions raised, the case is governed by Commissioners, etc., v. Mich. Cent. R. R. Co., et al., supra. The causes will be remanded to the jury for further proceedings. Morse, C. J., Long and Montgomery, JJ., concurred with McGrath, J.